US – Recent progression in the legalisation of marijuana has left employers dazed and confused – Lexology

By Keya C. Denner, Chandler Armistead, Firm: t FordHarrison

This article gives an overview of employers’ widely varying obligations relating to employee marijuana use on a state and federal level in the US.

In the last year, a record number of states have amended or enacted laws that regulate marijuana testing, accommodations, and use. Among these states, at least two states have specifically banned pre-employment testing of marijuana. Some states have also enacted provisions that protect employees from being discriminated against for obtaining a medical marijuana licence, require reasonable accommodations and provide privacy rights outside of the workplace. In total, 15 states currently have medical cannabis laws that provide some form of explicit employment protection for medical cannabis users. Needless to say, the rapid progression in marijuana legalisation has left employers ‘Dazed and Confused’.

According to the annual Quest Diagnostics Drug Testing Index, positive marijuana results have increased nearly 24% since 2014 for safety-sensitive employees in the federal workplace, who are subject to federally mandated drug testing. The critical issue with marijuana drug testing for employers is that positive results do not reliably establish that an employee used or was impaired by the drug while on the job. Indeed, marijuana can stay in an individual’s system for as long as 30 days from the last time consumed. This is a big reason why jurisdictions like New York City and Nevada have chosen to prohibit pre-employment testing, with the exception of high-risk roles, care-givers, and emergency responders. Even states that allow pre-employment testing, such as Oklahoma, have certain provisions that bar employers from refusing to hire applicants solely because of a positive result.

Recreational and medical marijuana laws Increase employer obligations

In addition to added employment rights for recreational marijuana users, employers may also have obligations under state laws that protect employees who are

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